Under Title VII, the primary federal law that prohibits workplace discrimination, employees and applicants are protected both from discrimination and from harassment based on their religion. The rules for proving harassment and determining whether an employer is liable for harassment are the same for religious harassment as for harassment based on other protected traits (including sexual harassment). However, some religious harassment cases have a unique twist: Sometimes, the employee accused of harassing others is trying to share his or her religious beliefs.
Types of Religious Harassment
The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces and interprets Title VII, divides harassment into two types: quid pro quo (“this for that”) harassment and hostile work environment harassment.
Quid Pro Quo Harassment Based on Religion
In a quid pro quo harassment case, the harassed employee is coerced or required to abandon or change religious beliefs, or to adopt religious beliefs, in order to get a job benefit (such as a promotion) or avoid punishment (such as discipline or firing). Here are some examples:
- An employee is told that she must attend a monthly meeting to study the principles of the Church of Scientology if she wants a promotion.
- A manager announces that the company is downsizing, and any employee who can’t work both days of the weekend will be laid off. An employee who has asked for and received her Sabbath day (Saturday) off as a reasonable accommodation is laid off after her manager tells her, “I’m not interested in your personal beliefs; if you can’t work Saturdays, you can find a job somewhere else.”
- A supervisor who is a devout Catholic asks an employee, who was raised Catholic but is no longer religious, to attend Mass with him before work. When the employee declines, the supervisor says, “I’m looking for a few employees I can recommend to handle a major new project, but if you don’t even have the discipline to attend Mass, I don’t think you’re going to be right for the job.”
Religious Harassment Based on a Hostile Work Environment
Hostile work environment harassment happens when an employee is subjected to unwelcome conduct, based on his or her religion, which is so severe or pervasive as to alter the terms and conditions of employment.
When Is Conduct Unwelcome?
Often, there is no dispute as to whether offensive comments about an employee’s religious beliefs are welcome. However, this might be an issue if what started as friendly conversations become more persistent and unavoidable. For example, an employee might be happy to answer a few questions about why his religion requires him to adopt a particular style of dress. However, if coworkers insistently pester him with questions and comments that take on a cruel or mocking tone, what was initially a welcome conversation could turn into unwelcome harassment.
Severe or Pervasive Harassment
To amount to harassment, comments or actions must be either severe or pervasive enough to alter the working environment. A single comment or action might be enough, if it is very extreme. For example, some Muslims were threatened with physical violence and subjected to virulent, hateful verbal attacks at work in the wake of 9/11.
Comments or conduct that are less extreme may still constitute harassment is they are persistent enough to infect the workplace. For instance, a single mocking comment by a coworker about an employee’s Mormon beliefs would not be illegal harassment. However, if coworkers constantly joked and teased the employee about his faith, even after the employee made clear that he was uncomfortable and unhappy about it, that might be harassment.
Employer Liability for Harassment
An employer’s liability for harassment depends on the harasser’s position and the results of the harassment. Once the employer learns of harassment, it has a legal duty to take effective action to stop it. The employer is legally liable for any harassment that happens after the company is put on notice of it.
If the harasser is a supervisor, however, the company might be liable even for harassment it knew nothing about. The company is always liable for supervisor harassment that results in a tangible employment action (firing, demotion, or discipline, for example). The company can operate only through its supervisors; when a supervisor abuses that authority to threaten and punish employees for illegal reasons, the company will be held responsible.
If a supervisor commits harassment that doesn’t involve a tangible employment action (for example, by telling jokes or making unkind comments that create a hostile working environment), the rules are more complicated. In these situations, the employer can avoid liability by showing that it exercised reasonable care to prevent and promptly correct any harassment, and that the employee unreasonably failed to take advantage of opportunities the employer provided to prevent or correct the harassment. For example, if a company has a policy prohibiting harassment and a complaint procedure, the employee must take advantage of these protections in order to hold the company liable. If, however, the company routinely ignores harassment and doesn’t investigate complaints, then the company can’t avoid liability for supervisor harassment.
Proselytizing and Religious Discussions at Work
Some employees wish to – or believe their religion requires them to – express their religious beliefs at work by, for example, posting religious messages in their workspace, using religious language (such as “Praise the Lord’) when communicating with others, or attempting to proselytize coworkers. In these situations, it can be difficult to balance the rights of the religious employee with the rights of others who do not share that employee’s beliefs. In this situation, the harasser may in fact be an employee who is acting as his or her faith requires.
Court decisions are not entirely clear as to when an employee professing his or her faith crosses the line to become a harasser. Some courts have held that an employer has no duty to accommodate an employee’s religious expression when it could constitute harassment against other employees or it contravenes the employer’s diversity or nondiscrimination policies. Other courts have found in the religious employee’s favor if his or her behavior was merely annoying or created discomfort for others. Clearly, the more persistent and intense an employee is about expressing religious views at work, the more likely other workers are to feel harassed.
If You Are Facing Harassment
If you believe you are being harassed at work because of your religion, the best way to change the situation is to ask the harasser to stop. Sounds too simple, but it’s often true that the harasser hasn’t fully realized how hurtful his or her behavior has become. If your request falls on deaf ears, or you aren’t comfortable dealing directly with the harasser, complain to your company’s HR department, following your company’s complaint procedure. This gives the company an opportunity to remedy the problem; as explained above, it also preserves your right to hold the company liable, should the problem persist.
If you aren’t happy with the company’s investigation, or for any reason you feel uncomfortable proceeding on your own, talk to an experienced employment lawyer. If you decide to pursue legal action, you’ll need to file a charge of harassment with an administrative agency and, if that doesn’t resolve the matter to your satisfaction, a lawsuit. A lawyer can help you choose the best strategy for moving forward.